Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

With the cable news shows tracking the stock market like the latest sports scores ("it's down...no it's really down!), there is little doubt that the public and companies are all feeling some anxiety. 

So, I decided to take a look at some of the blog statistics to see if I could discern any patterns.  While some search terms over the last 72 hours seem obvious (such as "Connecticut Employment Law"), there were other search terms that stood out.

Among them are several dozen for what I would term "layoff-related" terms like OWBPA and WARN.  More troubling though were searches for "ct layoff law" or "60 day RIF law connecticut". 

Some of the search terms were even done by individuals with IP addresses at some notable Connecticut companies. Is this a prediction of things to come? Or is it just nervous employees researching what the rules are in case things turn south?

Either way, to me it shows a workplace on edge. 

In employment law, we often talk about how human resources can play an important role in taking the pulse of the workplace and providing communications to address questions that people might have.

Why? Because anger and lawsuits sometimes develop from employees who feel mistreated or who were not expecting the adverse action.  Telling employees the whole truth -- even when the future is up in the air -- is an important part of any communication plan. 

A long time ago I heard an employee -- when complaining about her employer -- say that her employer treated her "like a kid".  Had the employer managed the employee a little more closely, the lawsuit may have been averted.

Being forthright with employees about the prospects about the future business and staffing levels -- hopefully, that's not a novel concept for your business.

• Email This
• Print
• Comments
• Trackbacks

The headlines this week, particularly to those in Connecticut, sound an ominous tone.  Foxwoods announces layoffs of 700. And this morning, a new government report came out showing that employers shed nearly 160,000 jobs. 

Where will this all lead? That's the $1 trillion dollar question that is on everyone's mind. But in the meantime, there are several laws and issues that employers can familiarize themselves with now to deal with whatever the economy throws at it.

1. WARN Act - Number one is the Worker Adjustment and Retraining Notification Act. I've covered this before, but the key aspect of this law is that employers need to provide laid off employees with prior notice of an upcoming reduction in force. BUT, there are exceptions including for economic distress. So employers who are facing a deep credit crunch may want to look to that statute to understand their rights and obligations.
    
2. Unemployment Rules - Employers in Connecticut who have to layoff employees need to comply with rules about providing layoff notices to employees to allow them to receive unemployment compensation from the state.  The Connecticut Department of Labor has a detailed website on the subject including a guide for employers. 
    
3. Establishing and Developing a Legitimate Non-Discriminatory Rationale for Layoff - As I've indicated before, employers who layoff employees and who are subject to a lawsuit later on will need to establish a legitimate non-discriminator reason for the layoff. Is the economic downturn enough? Maybe. But employers should show how the economic downturn is affecting the business.  Are factory orders down? Are accounts receivables at unacceptable levels? Figure out the link between the downturn and business to provide the support for the decision.
    
4. Establishing Layoff Criteria - As the Pennsylvania Labor & Employment Law Blog recently highlighted, developing layoff criteria will also be important:

...It is advisable to develop selection criteria that support the business reasons for selecting one employee over another. Unless dictated by union contract, employers have discretion in developing the selection criteria which can include factors like, seniority, relative skills, performance, and/or disciplinary record.  More than one factor may be used.

Forced Ranking Systems are sometimes utilized to rank employees against one another from the top down based on performance criteria. The subjectivity in forced ranking can be challenged as discriminatory unless uniformly and rationally applied.

5. Severance Agreements - But the best way to reduce liability for employers is to offer severance benefits in exchange for a release of claims from employees. I've discussed this at length before, but if you're not familiar with the Older Worker Benefit Protection Act, now's the time to catch up on this important federal law.

• Email This
• Print
• Comments
• Trackbacks (1)

Over the next few days, I'll be filing posts about the ABA Labor & Employment Law Conference held in Denver from September 10-13 (my plans to post live ran afoul of some firewalls that labelled my site a "weapons" site. Who knew?)

With the unemployment rate at its highest levels in several years, it was no surprise that the program on layoffs and reductions in force was crowded. Some attorneys no doubt have had to deal with this issue before, particular in the recession early this decade. But since then, employers have become more sophisticated and the issues have become a little thornier to address.

As speaker Donald R.  Livington, a partner at Akin Gump Strauss Hauer & Feld LLP and former EEOC General Counsel, pointed out, many employers know about giving employees 45 days to consider separation agreements arising out of layoffs. So, the task that in-house counsel need to focus on are the “other” issues that are trickier to spot.

Fortunately, he highlighted a few issues to be on the look out for. I’ve covered several of these before during prior posts (available here and here):

• Think like a plaintiff’s lawyer. Find thd potential claims beforehand to fix issues from becoming problems.
• Determine if the company can articulate a clear business rationale for the RIF. If you can’t do it, you need to figure it. And check to see if there is documentation supporting this rationale.  
• Analyze the rationale to see if it has any hint of bias. And don’t just think about discrimination laws, but think about ERISA laws as well that prevent employers from firing employees to prevent them from obtaining certain benefits.

But the single most important way for employers to avoid litigation is to have a separation agreement and release that’s enforceable. And for that, having a lawyer review your standard agreement may be time and money well spent.

• Email This
• Print
• Comments
• Trackbacks

Just time enough for some short updates on various posts from the last few weeks.

• You may recall a few weeks ago that the Governor vetoed a bill which would have increased the minimum wage in Connecticut to $8/hour in January 2009.  While there has been talk of a possible override session, it's difficult to get the numbers to believe that the legislature has the votes to override the veto. Nevertheless, it appears that June 23, 2008 is a possible date for a veto override vote.    As I've mentioned before, this is most decidedly not a political blog, so if you've like to see what some of them have to say, check out the My Left Nutmeg blog post here.
  
• You may recall a few weeks ago the post about the attorney who allegedly submitted an anonymous letter purporting to be a janitor.  The Courant reported over the weekend that the attorney is now the subject of an investigation by the Statewide Grievance Committee.  No public comment has been given on the subject to it is unknown the extent of the Committee's investigation. 
  
• Last week, I reported on a $225M employment lawsuit filed against NASCAR.  Since my last update, two supervisors who were mentioned in the complaint were suspended and NASCAR defended itself from the allegations, in a report here. Unless particularly noteworthy, I'm not going to post any further updates on this case since it's outside Connecticut, but suffice to say that the employment law world and sports world create interesting enough cases that I wouldn't be surprised to see this one make a few more headlines before it's done.
  
• Lastly, following up on my post about the OWBPA and separation agreements, the Ohio Employer's Law Blog has done a good followup article on deciding the proper "decisional unit" for reductions in force.  As I've said before, with "disparate impact" claims and class action possibilities inherent in a reduction in force, getting solid legal advice on how to handle this subject matter is crucial to reducing exposure to lawsuits later on. 

• Email This
• Print
• Comments
• Trackbacks

For employers, providing employees with a separation agreement may be one of the best ways for a company to minimize their risk of litigation from the termination of that employee.  But an agreement, it is often said, is only worth the paper it is written on, if it meets certain legal requirements. 

Just like pilots review their checklists for takeoffs and landings, it is worth checking your model agreement for each major layoff or termination, to see if it meets with basic laws and regulations.  So, how can employer be sure that their agreements "take off" and get returned safely with a signature from the departed employee?

One key is to memorize the Older Workers Benefit Protection Act (OWBPA); it is part of the federal Age Discrimination in Employment Act (ADEA).  The OWBPA applies to any separation agreement with employees who are over 40 years old.  With reductions in force becoming more common, the OWBPA again becomes important.  Once an employer is familar with the checklist of items to comply with the OWPBA and prepares a "model" agreement, it is worth a legal review to ensure that it will be enforceable later on. 

So what sorts of things does the OWBPA require?

1. The waiver (in other words, the separation agreement) must be written in plain English so that the employee can understand the agreement;
2. The waiver must specifically mention that the employee is giving up his or her claims under ADEA;
3. The waiver cannot waive rights that arise after date release is signed;
4. The employee must receive consideration of value (typically money) above anything to which employee is already entitled;
5. The employee must be advised to consult with an attorney;
6. The employee must have at least 21 days to consider agreement;
7. The employee must have 7 days to revoke their acceptance of the agreement;
8. If the termination is part of a reduction in force or voluntary program that affects two or more employees, employee must be given at least 45 days to consider agreement and given a “release attachment” that has a list of those selected for the program (or termination) and those who are not. 
9. Is this a settlement of existing charge or lawsuit? If so, employee need only be given a “reasonable amount of time” to consider agreement.

Obviously, each element of this could be worth a separate post and employers are advised to seek legal counsel before using a model agreement. In upcoming posts, I'll discuss some of these elements and other provisions that separation agreements can include.

• Email This
• Print
• Comments
• Trackbacks (2)